The forgotten history of how Abraham Lincoln helped rig the Senate for Republicans

In 1860, the year Abraham Lincoln was elected president, Nevada
was a desert wasteland with . Indeed, the Silver State didn’t even exist on
the day of Lincoln’s election. Two days before the lame-duck
President James Buchanan left office, he signed legislation
carving off part of Utah Territory, which stretched across most
of modern-day Nevada, about a third of Colorado and some of
Wyoming, to form part of what we now know as Nevada. Congress
would soon pass two more bills expanding Nevada at Utah’s
expense.

This largely forgotten act of line-drawing enabled one of the
most consequential gerrymanders in American history. Because
the virtually unpopulated Nevada became its own territory,
Republicans could admit it as a state just four years later.
That gave the Party of Lincoln two extra seats in the Senate —
helping
from simultaneously controlling the White House and both houses
of Congress until 1893.

Nor was this selective admission of the Republican state of
Nevada an isolated case. Among other things, the reason why
there are two Dakotas — despite the fact that both states are
so underpopulated that they each only rate a single member of
the House of Representatives to this day — is because
Republicans won the 1888 election and decided to celebrate by
giving themselves four senators instead of just two.

There’s a lesson here for modern-day Democrats. The history of
the American statehood process is the history of political
factions selectively admitting new states in order to bolster
their own fortunes and harm those of their opponents. The
American West, with its wasteland of states with two senators
and approximately zero residents, was shaped by this brand of
constitutional hardball. And if Democrats do not embrace it
today, they risk being doomed to the political abyss.

By 2040, according to a University of Virginia analysis of
Census population projections, about — which means 16 senators
for one half of America and 84 for the other half. Meanwhile,
according to Stanford political scientist Jonathan Rodden,
partisanship closely — “as you go from the center of cities
out through the suburbs and into rural areas, you traverse in a
linear fashion from Democratic to Republican places.”

So America is fast approaching a tipping point where one party
will enjoy a permanent supermajority in the United States
Senate — and with it, permanent control over the federal
judiciary. Democrats have no choice. They must embrace the
Party of Lincoln’s tactic of selectively admitting new states,
or they must perish.

Two senators, no residents

Had the Democrat Buchanan understood what chopping up Utah
would mean for the nation’s future, he probably would have
vetoed the bill creating Nevada Territory. At the time, Mormons
were . Yet the carving up of Utah Territory isolated
most of these Mormons and allowed Republicans to dominate
Nevada and Colorado. That, in turn, allowed Republicans, who
controlled Congress for much of this era, to admit Nevada and
Colorado as Republican states in fairly short order. Utah would
remain a territory until 1896.

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It’s hard to blame President Lincoln for signing the 1864
legislation turning the barren Nevada desert into a state.
America, after all, was caught in a civil war. If unionists
lost their majority in the Senate, the new majority could force
a surrender. War often requires leaders to take actions that
would be unconscionable during peacetime. .

But there’s no question that Lincoln’s decision to sign the
Nevada legislation was a gross departure from ordinary
practice. As Nolan McCarty, Keith Poole, and Howard Rosenthal
explain in a laying
out much of the history of statehood admissions in the United
States, Congress typically would not consider a territory’s
petition for full statehood until that territory reached a
certain population threshold — “the norm for eligibility was
sufficient population to reach the current quota for a House
seat.”

In 1864, when Nevada became a state, that quota was about
125,000 residents. Nevada, with a population of less than 7,000
in the most recent census, did not even come close to crossing
that threshold. Indeed, as Charles Stewart and Barry Weingast
note in a
laying out the history of statehood admissions in the later
half of the 1800s, “had Nevada waited until the standard
population criterion had been met . . . it would not have
entered the Union until 1970.”

Indeed, it’s difficult to justify admitting any
western territory during this period in American history. “In
the 1860 census only 1 percent of the nation’s population lived
in the territories,” Steward and Weingast note. And yet Nevada
was the first of several Republican territories admitted to the
Union largely to bolster Republican electoral prospects.

Republicans also tried to admit Colorado around the same time
that Nevada became a state, although this attempt was thwarted
because the would-be state’s residents rejected a proposed
state constitution. The GOP tried again shortly after Lincoln’s
death, only to have this effort thwarted by President Andrew
Johnson’s veto. They finally succeeded in 1876, after
Republican President Ulysses Grant signed the Colorado bill
into law.

Yet Colorado never met the traditional criteria for statehood
during this entire saga. According to the 1870 Census, Colorado
Territory had .

These shenanigans made it possible for the GOP to engage in
more of the same down the road. In 1888, for example, Congress
considered omnibus legislation admitting several western
territories as states. Though both parties agreed that new
states should be admitted, they disagreed on whether the
Democratic territory of New Mexico should be admitted or not.
Republicans also wanted to split the GOP-friendly Dakota
territory into North and South Dakota, thus giving them an
additional two seats in the Senate.

Ultimately, Republicans got their way because they defeated
Democratic President Grover Cleveland in the 1888 election, and
took back the House of Representatives to boot. With no chance
of blocking the GOP’s preferred outcome after President-elect
Benjamin Harrison took office, Democrats gave up the fight.
There are still two Dakotas. New Mexico did not become a state
until 1912.

Yet it’s worth noting that, in 1888, while the omnibus
statehood admissions bill was under debate, Democrats
controlled both the House and the White House, and Republicans
only enjoyed a two-seat majority in the Senate. Thus, if Nevada
and Colorado statehood had not given Republicans four extra
seats in the Senate (Nevada sent a single Democrat to the
Senate from 1881-1887, but otherwise reliably chose Republican
senators until the twentieth century), Democrats would have
controlled Congress and the White House in 1888 and would have
been able to admit Dakota and New Mexico on their own terms.

Where to go from here

The Party of Lincoln was able to manipulate statehood
admissions with relative ease, largely because the United
States still had so much territory that remained unrepresented
in Congress. Today, such territory is scarce. Beyond the
District of Columbia, which should be admitted as at least one
state as soon as Democrats take control of Congress and the
White House, the rest of the continental United States is
already part of one state or another.

Offshore territories such as Puerto Rico offer one option, but
these territories have their own politics and often have their
identities distinct from the United States. While a plurality
(48 percent) of Puerto Ricans told pollsters in 2018 that they
would , large minorities opposed this
option. In a 2012 referendum, only (though many voters left the
statehood question blank).

It’s far from clear, in other words, which American territories
— if any — would accept statehood if it were offered.

There is another option — one that also stretches back to the
Lincoln administration. In 1861, shortly after the Civil War
began, 35 Virginia counties rebelled against the rebellion. The
unionist counties met in Wheeling, declared itself to be the
lawful government of Virginia, and eventually were admitted
back into the Union as the state of West Virginia.

As a constitutional matter, this maneuver was . Though
the Constitution permits new states to be carved out of old
states, it may only happen with “ as well as of the
Congress.” President Lincoln recognized the Wheeling loyalists
as the legitimate government of Virginia — and Congress
acquiesced by seating two senators appointed by the Wheeling
government as the legitimate senators from the Commonwealth of
Virginia.

The Wheeling government then acted as the Virginia legislature,
passing a law acquiescing in its own divorce from the
traitorous parts of Virginia. And so West Virginia was born.

Modern-day Democrats would not need to play similar games to
split large blue states like New York and California into
multiple new states — assuming, of course, that their state
legislatures are willing to play along. The legislation
creating ten Californias or eight New Yorks, moreover, could
potentially be that places at least some of the state
government’s core functions in a unified California or unified
New York government.

This solution will be perceived as radical, and it will
undoubtedly trigger massive resistance from Republicans in
Congress and on the Supreme Court. But if the alternative is
allowing half the country to control 84 percent of the Senate,
splitting blue states is a more democratic choice than doing
nothing.

It’s also painfully clear that few Democrats have wrapped their
head around the coming Senate malapportionment crisis.

Sen. Mitch McConnell (R-KY) became Minority Leader in 2007. It
before Democrats realized that the only way to confront his
obstructionism was to change the Senate’s rules so that the
minority caucus could no longer block President Obama’s
nominees. Fundamentally altering the makeup of the Senate is a
much more consequential change than a new Senate rule. It is
likely that elected Democrats will take at least as long before
they wake up to the threat Senate malapportionment presents to
American democracy.

But they are also running out of time. The next time Democrats
win a majority in the Senate — if it happens at all — could
very well be the last. Even in the most optimistic scenarios,
Democrats may have as few as two years to act before they
permanently lose control of the Senate, and with it, the
Supreme Court and the Constitution.

Should they choose to act, moreover, Democrats should know that
admitting new states for political reasons is entirely normal
in American history — and it was a tactic pioneered by
America’s greatest president.

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